ACLU on the Aggressive Solicitation ordinance

The American Civil Liberties Union has written a lengthy opinion on the constitutionality of the proposed Remington/Ostrow Aggressive Solicitation ordinance that passed today. Their basic interpretation echoes my own: the constitutionality of this amendment is highly questionable. They conclude, and I agree, that Remington and Ostrow, along with the Council majority, have now passed an ordinance that will unfortunately be challenged in court, and there is a good chance that we will lose. This has been reaffirmed by some of our City Attorney's own opinion that certain provisions of the Remington/Ostrow amendment is a "roll of the dice."



Here's the whole opinion:


I. INTRODUCTION
All individuals in the City of Minneapolis, including people who are homeless or appear to be homeless, have a Constitutional right to be in public places for an unlimited amount of time, so long as they are not obstructing pedestrian or vehicular traffic, breaching the peace, or otherwise violating any law or applicable regulations. Courts around the country have repeatedly recognized that solicitation is speech fully protected by the First Amendment. See, e.g., Loper v. New York City Police Dep’t, 999 F.2d 699 (2nd Cir. 1993); Benefit v. Cambridge, 424 Mass. 918 (1997); Ledford v. State, 652 So. 2d 1254 (Fla. Dist. Ct. App. 1995). Courts have also recognized that attempts to restrict solicitation are content-based restrictions on speech that violate the First Amendment. See Loper, 999 F.2d at 705; Benefit, 424 Mass. at 187-189; see also, H. Hershkoff & A. Cohen, Begging to Differ: The First Amendment Right to Beg, 104 Harv. L. Rev. 896 (1994) (arguing that solicitation is protected by the First Amendment). As much as some might wish homeless persons to be seen and not heard, fortunately the Constitution does not permit the government to stifle speech so central to a person’s struggle to survive.



The proposed amendments constitute increased regulation of streets, sidewalks and parks, which are the quintessential public fora. These are crucial places for the free exchange of ideas, a treasured freedom guaranteed by the First Amendment. US v. Grace, 461 U.S. 171, 177 (1983). Though the rights to use these spaces can be limited, the restrictions must be content neutral time, place and manner restrictions that are narrowly tailored to serve a significant government interest, and they must leave open ample alternative channels of communication. Restrictions that are content-based are subjected to strict scrutiny and must be narrowly tailored to serve a compelling government interest. We believe that the proposed amendments fail both of these tests.


II. THE RESTRICTIONS ARE IMPERMISSIBLY CONTENT-BASED
It is important to understand this ordinance is a content-based restriction on speech. Under the ordinance, expressive conduct is criminalized based on the content of the speech. An ordinance that distinguishes between types of solicitation has been deemed content-based because, to determine whether the conduct is criminal, the words uttered must be examined. Burson v. Freeman, 504 U.S. 191 (1992). This ordinance, though prohibiting solicitation of donations, does not prohibit the solicitation of signatures or votes. As a result, the content of the speech has to be examined in order to determine whether it was a solicitation for money or something else. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000). S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998).



Content-based restrictions are subject to strict scrutiny, which requires a compelling governmental interest and narrow tailoring of the regulation. Perry Educ. Ass’n. v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983). Even if the city could show that it has a compelling interest in preventing “aggressive solicitation”; it is unlikely that there is an equally compelling interest in protecting individuals from unwanted “non-aggressive” requests that make them feel uncomfortable.


III. THE RESTRICTIONS ARE UNCONSTIONALLY OVERBROAD
The proposed amendments will carve out wide areas across the city where individuals cannot ask for money, making it nearly impossible for the poor to present their issues to the rest of society. There are at least 99 schools and 182 parks spread across the city of Minneapolis, which will now also cast out the poorest among us. A cursory look at the weather in wintertime also demonstrates the degree to which the poor are being silenced, as there are only about 8 hours of daylight for most of the month of December. After subtracting the half hour at dawn and half hour at dusk, it becomes evident that speech is being severely temporally restricted. This ordinance is aimed at silencing the homeless in their struggle to survive and is a mean-spirited attack on the city’s most vulnerable citizens.


This ordinance is additionally overbroad with respect to the groups of people regulated. The broad definition of solicitation in the ordinance sweeps up all charitable causes, whether individual beggars or organized charities. The First Amendment protects the right of an individual to solicit charitable contributions for personal support, as has been recognized by courts around the country. Loper v. New York City Police Dep’t, 999 F.2d 699 (2nd Cir. 1993); Benefit v. Cambridge, 424 Mass. 918 (1997); Ledford v. State, 652 So. 2d 1254 (Fla. Dist. Ct. App. 1995). Indeed, the Supreme Court has expressly recognized that the solicitation of charitable contributions encompasses a number of speech interests that merit first amendment protection, including the sharing of information and communication of different viewpoints on social issues. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826 (1980). Several courts have held that the interests involved in organized charity and those involved in solicitation for oneself are not fundamentally different. Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000); Loper v. New York City Police Dep’t, 999 F.2d 699 (2nd Cir. 1993); Smith v. City of Fort Lauderdale, 177 F.3d 954, 956 (1999).


In Minnesota v. McDonald (2004), a Hennepin County District Court also found that there was no meaningful difference between individual solicitation and another person taking up the cause of the poor. In that case, a prior iteration of Minneapolis City Ordinance 385.60 was found unconstitutionally broad because the free speech interests at issue outweighed the state’s interests in silencing the homeless. There has been recognition at all levels, including here in Hennepin County, that there is no distinction between solicitations for organized charity and solicitations to support oneself. It is well established that the first amendment encompasses a right to solicit funds for either of these charitable purposes, and this ordinance clearly hampers the exercise of that right.


IV. THE RESTRICTIONS DO NOT LEAVE AMPLE ALTERNATIVE MEANS OF
COMMUNICATION
When creating a restriction upon the public forum, policymakers must protect alternative channels for communication. Perry Educ. Ass’n. v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983). When reading the list of places where solicitation, even if peaceful, will be prohibited at all hours of the day, it is difficult to imagine an space downtown that will not be affected. A walk down Hennepin Avenue or Nicollet Mall, when considering the financial institutions, sidewalk cafés, and public entertainment venues, would demonstrate that there is no longer a place for the homeless in downtown Minneapolis. Under this amended ordinance, the very center of our community will exclude the poor and prevent them from communicating their needs to the general population.


V. THE RESTRICTIONS ARE IMPERMISSIBLY VAGUE AND WILL LEAD TO
ARBITRARY AND DISCRIMINATORY ENFORCEMENT
The breadth of areas that would be off limits under the proposed amendments will make it extremely difficult, if not impossible, for those affected by this law to know if their conduct fits within the range of that which is prohibited. This is particularly true of situations in which there is an ATM inside an office building, because the ordinance is not only unclear about whether the 80 feet would extend outside, but also because a solicitor may be unaware of the presence of such a financial institution. Even the limited public spaces left untouched by the proposed regulation are unlikely to be known to the would-be solicitor because the rules are so complicated. Those complicated rules will also make it difficult for police to enforce and renders the ordinance susceptible to arbitrary enforcement decisions.



It appears that the ordinance may already be applied arbitrarily. A Star Tribune article from May, 2007 recounts the actions of a police officer who pulled up to two people holding signs that asked for money: "A police car pulled up. A brief staredown ensued between the panhandlers and [the]officer… He was about to ask them to scoot for the second time that day." (Star Tribune, May 27, 2007)


Although holding signs and engaging in nonverbal solicitation is specifically excepted from regulation under the ordinance, it is clear that this officer intended to enforce the ordinance against them again had they not left the area on their own.


This regulation applies to any and all requests for money by any person in large portions of the city and during large parts of the day. Because the ordinance and the proposed amendments are intended only to address individual beggars, this leaves it wide open to the possibility of discriminatory enforcement. Proponents might assure us that an elderly grandmother who locks her keys and purse in her car after dark and asks a stranger for money to use a payphone will not be arrested, or that the prohibition against two or more people soliciting together will not be applied to a mother who is accompanied by her young child. But that is a clear admission that the ordinance is intended to be selectively enforced against individuals who are perceived by police and the public to be a nuisance or a threat. Those individuals are more likely to be poor, homeless and minorities. Given that there are indications that the ordinance is already being misapplied to non-verbal solicitation, it is very possible that the amendments will also be misapplied.


VI. CONCLUSION
Although courts have allowed cities to regulate speech in the form of solicitation, the proposed
restrictions go much further than what is constitutionally permissible. These content-based restrictions are not sufficiently narrowly tailored to serve a compelling government interest. Because the restrictions are so broad, they would likely not pass constitutional muster. The restrictions are complex and confusing, they do not provide individuals with sufficient notice that they are violating the ordinance, and they are likely to lead to arbitrary enforcement decisions by police. Finally, the disconnect between the proposed ordinance on its face and the City Council’s intent will inevitably lead to unconstitutional discriminatory application.